RESELLER AGREEMENT
THIS AGREEMENT is made this 31st day of March, 1998 by and between Care
Corporation Limited ("CCL"), with offices at Xxxxxx Building, P.O. Box 3186,
Main Street, Road Town, Tortola, British Virgin Islands and Cover-All Systems,
Inc. (the "Company"), with offices at 00-00 Xxxxxxx Xxxxx, Xxxx Xxxx, Xxx Xxxxxx
00000.
WHEREAS,
1. CCL develops and markets software products (including associated user and
technical documentation) which are the property of and proprietary to CCL
(the "CCL Software Products") together with CCL furnished technical and
software support services ("CCL Services"). The CCL Software Products and CCL
Services are hereinafter sometimes referred to collectively as the "CCL
Product(s)";
2. The Company has, among other things, extensive knowledge and expertise in the
marketing, sale and support of software products and services with particular
focus on the financial services and insurance industry market sectors and
desires to be appointed and authorized to resell CCL Products;
3. CCL has agreed to appoint the Company as a reseller of CCL Products and the
Company has agreed to accept such appointment subject to and in accordance
with the terms and conditions hereinafter appearing.
ACCORDINGLY IT IS HEREBY AGREED AS FOLLOWS:
1. Scope of this Agreement
Subject to the terms and conditions of this Agreement, including the Exhibits
referenced herein and the terms of CCL reseller price and policy bulletins
("Reseller Bulletins") as issued by CCL from time to time, CCL agrees to sell,
and the Company agrees to purchase, CCL Products for resale by the Company, to
end user customers of the Company, during the term of this Agreement.
2. Appointment as Authorized Reseller
(a)CCL appoints the Company as an authorized reseller ("Reseller") of the CCL
Products more particularly identified and described in Exhibit A hereto,
as the same may be amended from time to time pursuant to the provisions of
Section 2(e) below. The Company agrees to market CCL Products only to
commercial end user customers within the market categories and
geographical territory more particularly described and set forth in
Exhibit B hereto.
(b)"Reseller" as used in this Agreement means an entity which, in the normal
course of its business, markets and sells the products and/or services of
a third party through a direct sales force to end user customers of the
Reseller.
(c)As an authorized Reseller, the Company agrees to comply with all
instructions and directives, relating to authorized Resellers as contained
in Reseller Bulletins issued by CCL.
(d)This appointment is non-exclusive and will not prevent CCL from appointing
other resellers of any kind or from directly marketing the CCL Products to
end user customers and/or from supplying CCL Products for resale to other
resellers. The Company will not market or deliver CCL Products to those
companies (if any) listed in Exhibit C to this Agreement unless the
Company receives express authorization from CCL which is documented by
means of a written amendment to this Agreement executed on behalf of each
of the parties hereto.
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3. Orders, Delivery and Acceptance
(a)All orders (including but not limited to orders placed using the Company's
standard form of purchase order) issued by the Company hereunder shall be
in writing, shall refer to this Agreement and to the applicable "End User
Agreement" (as such term is defined in Section 9 below) and shall be
forwarded to CCL at the address set forth above. Such orders shall
identify the type and quantity of CCL Products to be furnished by CCL to
the Company and specify the requested delivery date for CCL Software
Products and the time frame for the performance of CCL Services. Any
additional terms and conditions contained in or endorsed on any such order
or any other document accompanying or referenced by such order are of no
effect, and CCL hereby gives notice of objection to such additional terms.
Orders will bind CCL only when acknowledged and accepted by written
confirmation from CCL. CCL shall issue written acceptance or rejection of
an order no later than ten (10) days from the receipt of any order form.
(b)For orders canceled, rescheduled or otherwise changed by the Company, CCL
may impose a reasonable cancellation, rescheduling, or change fee.
(c)Delivery of CCL Software Products which have been released for general
commercial distribution will be made no later than thirty (30) days from
the date of acceptance of the Company's order by CCL. The delivery date
applicable to CCL Software Products which have not been released for
general commercial distribution will be mutually agreed upon in writing by
CCL and the Company prior to acceptance of the applicable order by CCL.
The dates for the furnishing of CCL Services will be mutually agreed upon
in writing by CCL and the Company prior to acceptance of the applicable
order by CCL. With the Company's prior approval, CCL may make partial
deliveries against any of the Company's orders, which deliveries will be
invoiced and paid for in accordance with the terms of this Agreement
notwithstanding the requirement to make subsequent deliveries against the
same order.
(d)CCL will ship CCL Software Products in accordance with its standard
practices. CCL will deliver CCL Software Products and furnish CCL Services
to the location(s) specified in the Company's order. Risk of loss and
damage to CCL Software Products will pass to the Company upon delivery to
the location specified in the applicable order. CCL Software Products will
be deemed accepted if the Company does not give CCL written notice of
rejection within 30 days after the date of shipment by CCL.
(e)CCL may delete any CCL Product from Exhibit A of this Agreement at any
time upon ninety (90) days prior written notice to the Company. CCL may
add products and/or services to Exhibit A of this Agreement at any time
upon written notice to the Company. CCL makes no commitment to offer any
CCL Products to the Company other than such products and services as are
specified in Exhibit A hereto.
4. Reports and Records
The Company will submit to CCL, if requested by CCL, financial reports and
other financial data as may be reasonably requested by CCL, and will
retain for two years its accounts, agreements and other business records
relating to sales of the CCL Products. The Company will permit CCL, upon
reasonable notice during normal business hours, to examine such reports,
financial data and records for the limited purposes of analyzing the
Company's financial condition and verifying its compliance with the terms
of this Agreement.
5. Prices and Discounts
(a)Prices for CCL Products will be the CCL commercial list price in effect on
the date CCL accepts the Company's order, less the applicable reseller
discount as specified in CCL's then current applicable "Reseller
Bulletin(s)." CCL may revise its list prices, Reseller discounts, or both
at any time upon written notice to Company. If the Company's actual price
after discount for a CCL Product is increased by any such a revision or
revisions, then CCL shall give the Company at least ninety (90) days prior
written notice of such revision or revisions with
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respect to the CCL Product(s) affected by any such revision(s), in every
other case CCL shall give the Company not less than ten (10) days written
notice of any change to CCL's list price for any of the CCL Products
and/or Reseller Discounts. The Company will be notified of list price and
discount revisions by means of Reseller Bulletins issued by CCL.
[i] Price decreases will apply to orders shipped after the effective date
of the applicable price decrease.
[ii]Any price increase will apply to orders received after the effective
date of the applicable price increase and to all orders received
before its effective date but scheduled for delivery more than one
hundred twenty (120) days after such effective date.
[iiiPrices do not include, and the Company is responsible for, any sales,
withholding, use, value added, property and similar taxes levied on
CCL Products furnished pursuant to this Agreement and/or other items
furnished to the Company by CCL, exclusive of any and all taxes based
upon the net income of CCL. Prices for CCL Services do not include the
expense of travel, lodging and subsistence incurred in connection with
the performance of such services. Such expenses will be billed to and
payable by the Company in accordance with CCL's then current travel
policy. Any and all travel time to and from a CCL facility (to the
Company's facility or a Company end user facility) which is incurred
in connection with the provision of CCL Services will be billed to and
payable by the Company at the hourly fee rate of the applicable CCL
personnel engaged in performing such services.
6. Payment Terms
(a)Invoices will be issued by CCL on or after the date of shipment of CCL
Software Products. Invoices in respect of CCL Services will be rendered
annually in advance for standard software maintenance services and monthly
in arrears for other CCL Services. Payment terms are net thirty (30) days
from the date of invoice. Charges for change, rescheduling or cancellation
fees, and for other items or services will be invoiced as incurred. CCL
reserves the right to change payment terms at any time, upon not less than
ten (10) days prior written notice to the Company, if in CCL's reasonable
opinion the Company's financial condition or payment record so warrant.
(b)CCL may impose a late payment charge equal to the lesser of (i) 1 1/2% per
month of the outstanding amount due, or (ii) the maximum rate allowed by
law. If the Company becomes delinquent in the payment of any amount due,
CCL may suspend performance under this Agreement, without prejudice to any
and all other remedies available to CCL (for nonpayment) under this
Agreement or at law or in equity.
7. Obligations of Company
(a)The Company will actively promote and market the CCL Products in
accordance with the Company's then current and approved Marketing and
Business Plan.
(b)On an ongoing basis the Company will (i) maintain a qualified sales and
technical staff of appropriate size, experienced in the sale,
implementation and support of client/server software applications, and
knowledgeable in the CCL Products and related items; (ii) provide end user
customers with technical support and training in the use of the CCL
Software Products, and (iii) provide adequate and attractive facilities
for the display and demonstration of CCL Software Products.
(c)Immediately upon receipt thereof, the Company will notify CCL of any legal
or other notices which may affect CCL or its licensors and will promptly
respond to any complaints regarding CCL Products made by the Company's end
user customers and will timely notify CCL of any such complaint which is
not promptly resolved by the Company.
(d)The Company will market CCL Products only pursuant to the terms of this
Agreement.
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8. Obligations of CCL
(a)CCL will make available, to a reasonable number of the Company's sales and
technical staff, training and related materials with respect to the
design, implementation and use of CCL Software Products. Availability and
details of such training (including charges, if any) will be as specified
in CCL's then current applicable Reseller Bulletin.
(b)CCL will provide the Company, at no charge, with (i) a reasonable quantity
of brochures and sales promotion material with respect to the CCL
Products. Upon written request from the Company, CCL will furnish
additional copies of such materials at CCL's then current charges.
(c)CCL will provide the Company with periodic marketing communications and
updates in respect of the CCL Products.
(d)CCL will provide the Company with object code demonstration versions of
CCL Software Products in order to facilitate the demonstration of such
products by the Company to end user customers and prospects of the
Company.
(e)CCL will, as mutually agreed upon with the Company, and on a case by case
basis, provide pre-sales support to the Company when such support is
required in connection with the conclusion of a sale of CCL Products to an
end user customer or prospect of the Company.
(f)CCL will provide the Company with reasonable access to CCL product
demonstration capabilities at the facility of International Insurance
Technologies, Inc. ("IIT"), CCL's wholly owned subsidiary, in Tampa,
Florida, or at such other CCL or IIT facility as is designated by CCL to
the Company.
9. Warranties and Disclaimers
(a)CCL warrants that each CCL Software Product furnished to the Company
pursuant to this Agreement will perform (in its unaltered format) in
accordance with the functional specifications for such CCL Software
Product as documented in the application description manual ("ADM") for
each such CCL Software Product when executed and operated by the
designated computer equipment and software configuration more particularly
described and set forth in Exhibit D hereto. CCL will deliver the
applicable ADM for each software product ordered hereunder together with
delivery of each such CCL Software Product. The duration of this warranty
is ninety (90) days from the date of first delivery of each CCL Software
Product by, or on behalf of, the Company to its original end user
customer. CCL's obligation under this warranty shall be to replace any CCL
Software Product which is defective due to damaged or defective software
storage media and/or to correct any errors in a CCL Software Product which
are causing such product not to substantially conform to the functional
specifications set forth in the applicable ADM.
(b)EXCEPT AS PROVIDED IN SECTION 12 (INFRINGEMENT INDEMNIFICATION) AND
SECTION 9(a) ABOVE, CCL MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, REGARDING THE CCL PRODUCTS. BY WAY OF EXAMPLE BUT NOT OF
LIMITATION, CCL MAKES NO REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO ANY OR ALL OF THE
CCL PRODUCTS.
(c)The warranty set forth in 9(a) above does not apply to any CCL Software
Product which (i) has been altered, except by or under the direction of
CCL; (ii) has not been handled, installed, maintained or operated in
accordance with CCL instructions; or (iii) has been damaged by accident,
misuse, negligence or external factors.
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10.End User Customer Agreements
(a)CCL will provide the Company with end user customer agreement forms (the
"End User Agreement") with respect to the licensing and provision of CCL
Products.
(b)The Company will make its end user customers aware of the terms and
conditions of the End User Agreement during the course of the sales cycle
to each such end user customer. The Company will obtain three (3) copies
of a signed End User Agreement from each end user customer prior to
submission of an order for CCL Products. The Company will promptly forward
all three (3) copies of each signed End User Agreement (duly executed by
each of the Company and the end user customer) to CCL. Upon acceptance of
the order relating to any such End User Agreement, CCL will execute all
three (3) originals of the End User Agreement and return two (2) fully
executed originals to the Company. The Company will return one (1) fully
executed original to the end user customer and retain the other fully
executed original in the Company's files for a period of not less than
seven (7) years.
(c)The Company's obligations under this Section 10 will survive the
expiration or termination of this Agreement.
11.Limitation of Liability and Indemnification
(a)THE COMPANY'S SOLE AND EXCLUSIVE REMEDIES FOR DIRECT DAMAGES FROM ANY
CAUSE RELATING TO OR ARISING OUT OF THIS AGREEMENT WHETHER BASED ON
NEGLIGENCE, BREACH OF CONTRACT, WARRANTY OR OTHER LEGAL THEORY, WILL BE
THOSE PROVIDED IN THIS AGREEMENT. EXCEPT FOR CLAIMS ARISING OUT OF CCL
OBLIGATIONS UNDER SECTION 12, CCL'S LIABILITY FOR ANY AND ALL CLAIMS
(ARISING OUT OF OR RELATING TO THIS AGREEMENT) WHETHER BASED ON
NEGLIGENCE, BREACH OF CONTRACT, WARRANTY OR OTHER LEGAL THEORY, SHALL NOT
EXCEED THE ACTUAL AMOUNT PAID BY THE COMPANY FOR THE SPECIFIC PRODUCT(S),
SERVICE(S), OR OTHER ITEM(S), GIVING RISE TO THE CLAIM.
(b)IN NO EVENT WILL CCL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF
GOODWILL OR OTHER DIMINUTION IN THE VALUE OF THE COMPANY"S BUSINESS,
REVENUES, PROFITS OR SAVINGS, EVEN IF CCL KNEW OR SHOULD HAVE KNOWN OF THE
POSSIBILITY OF SUCH DAMAGES.
(c)Except for the remedies provided to the Company in this Agreement, the
Company will indemnify and hold CCL harmless against any claims, costs,
damages and liabilities arising out of or in any way connected with (i)
any breach of this Agreement by Company, its employees or agents and (ii)
any claim by end user customers or other third parties with respect to
Company's products or other non-CCL products provided, recommended or
referred by the Company or recommended, referred or introduced to the
Company as provided in (d) below. Such indemnification will include all
reasonable legal fees and other costs incurred by CCL in defending any
such claims. Termination of this Agreement will not affect the Company's
indemnification obligations pursuant to this Section 11(c).
(d)CCL may direct the Company to third parties having products which may be
of interest to the Company for marketing or use in conjunction with CCL
Products. Notwithstanding any CCL recommendation, referral or
introduction, the Company will independently investigate and test third
party products and will have sole responsibility for determining
suitability for marketing or use of third party products. CCL has no
liability with respect to claims relating to or arising from the
marketing, sale or use of such third party products.
(e)CCL shall have no liability with respect to any claim of the Company or a
third party on account of, resulting from, or arising out of the use of
any software product furnished to the Company by CCL (pursuant to this
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agreement) and which software product is provided to CCL by a third party
licensor (including software derived from such third party licensor's
software). Licensors of software to CCL shall have no obligation to
furnish any assistance, information or documentation with respect to any
such software product.
12.Infringement Indemnification
(a)CCL, at its own expense, will defend and indemnify the Company against any
claim that CCL Software Products (to include the intellectual property of
any third party which is comprised in any of the CCL Software Products)
furnished under this Agreement infringe a United States patent or
copyright or are subject to any claim of misappropriation of trade secrets
protected under United States law, provided the Company (i) gives CCL
prompt written notice of any such claim (of which the Company has actual
notice, whether direct or indirect) in the manner prescribed by Section 17
of this Agreement, (ii) permits CCL to defend or settle the claim, and
(iii) provides all reasonable assistance to CCL in defending or settling
such claim.
(b)As to any CCL Software Product which is or, in the opinion of CCL, may
become subject to a claim of infringement or misappropriation, CCL may
elect to (i) obtain the right of continued remarketing and use of such CCL
Software Product for the Company or (ii) replace or modify such CCL
Software Product to avoid such claim. If neither alternative is, in the
opinion of CCL, available on commercially reasonable terms, then the
Company, at the request of CCL, will discontinue remarketing of the
affected CCL Software.
(c)CCL will not defend or indemnify the Company if any claim of infringement
or misappropriation (i) results from modification or alteration of any CCL
Software Product by the Company or any third party, or (ii) results from
use of any CCL Software Product in combination with any non-CCL product.
(d)This Section 12 states the entire liability of CCL and the Company's sole
and exclusive remedies for patent or copyright infringement and trade
secret misappropriation.
(e)The provisions of this Section 12 shall survive the expiration or
termination of this Agreement.
13.License Rights With Respect to CCL Software Products
(a)Title to all CCL Software Products supplied to the Company by CCL under
this Agreement will remain with CCL or its licensors, and the Company will
acquire no rights whatsoever to any CCL Software Product except as
expressly granted and set forth in this Section 13.
(b)Subject always to the Company's compliance with all of the provisions of
this Section 13 CCL hereby grants to the Company a personal,
non-transferable and non-exclusive right to: (i) distribute the CCL
Software Products only to end user customers of the Company which have
entered into an executed End User Agreement as provided for by Section 10
hereof, (ii) use for demonstration purposes such object code versions of
CCL Software Products as may bc provided to the Company by CCL in order to
effect the purposes of this Agreement, (iii) install CCL Software Products
on the Company's end user customer computer equipment subject to such end
user customer having entered into an End User Agreement which has been
executed by such customer and CCL, and (iv) use CCL Software Products
furnished to an end user customer of the Company (subject to such end user
customer having entered into an End User Agreement which has been executed
by such customer and CCL) for the purpose of providing such end user
customer with implementation, training and/or technical support services.
(c)The Company shall not delete or alter any proprietary rights or similar
notices appearing on CCL Software Products.
(d)The Company acknowledges that the CCL Software Products (and all
intellectual property relating to or comprised in the CCL Software
Products, including but not limited to any or all of the program code,
system
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architecture or design of the CCL Software Products) are valuable
proprietary trade secrets of CCL and that the Company shall maintain the
CCL Software Products in the strictest confidence in accordance with the
stipulations of this Agreement.
(e)The Company agrees (except as is expressly authorized by this Agreement)
not to use, provide, or otherwise disclose, or make available to any
person or entity, in whole or in part, any CCL Software Product except as
authorized by and subject to the terms of this Agreement. The Company
agrees not to reverse engineer, decompile or disassemble any CCL Software
Product, or any part or portion thereof, or to create or to attempt to
create a derivative work based upon the CCL Software Products or any of
them or any part or portion thereof, including but not limited to the
system design and architecture of the CCL Software Products.
(f)The Company agrees to apply the same standard of care it applies to
protect its own confidential and proprietary information to protect the
CCL Software Products. The Company shall advise all of Company's employees
having a need to use the CCL Software Products on the Company's behalf,
for the purposes contemplated by this Agreement, of the proprietary and
confidential nature of the CCL Software Products and all of the Company's
obligations hereunder with respect to the use and safeguarding of the CCL
Software Products. Each such employee shall be obligated to protect the
CCL Software Products from unauthorized disclosure (as required by the
terms of this Agreement) pursuant to an appropriate written and executed
non-disclosure agreement.
14.Trademarks and Trade Names; Advertising
(a)As an authorized Reseller, the Company shall have the right to use the
legend "Authorized Reseller of Care Corporation Software Products and
Services" in signs, advertising, correspondence, proposals or other
materials, provided that such legend appears in type smaller and less
prominent than the Company's own name or xxxx.
(b)CCL will provide the Company with formats for use by the Company in
advertising and promoting the CCL Products. In using the formats, the
Company will comply with all related instructions provided by CCL. In
addition, CCL will provide the Company with written guidelines to assist
the Company in developing other advertising and promotional programs and
materials for the CCL Products. All materials relating to advertising,
promotion or any other form of publicity with respect to the CCL Products
must be submitted by the Company to CCL and approved in writing by CCL
(except as to price and terms of sale the Company intends to offer) prior
to the use of any such materials by the Company.
(c)No right or license is granted by CCL to the Company to use CCL trademarks
or trade names except as they appear on the CCL Products marketed by the
Company or as authorized by CCL in connection with the advertising or
promoting of such products. The Company will not affix any CCL trademarks,
logos or trade names to any of the Company's products and will not disturb
any legend, notice, label, plate, designation of any CCL trademark, logo
or trade name or serial numbers on CCL Products.
(d)The Company will not include CCL trademarks or trade names in any name
under which the Company does business.
00.Xxxxxxxxxx of Confidential & Proprietary Information
(a)For the purposes of this Agreement, "Information" means any information
(including but not limited to technical, financial and business
information) which is confidential and/or proprietary to CCL or the
Company and which information is marked or designated "proprietary",
"restricted", "confidential" or with a similar notice or designation.
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(b)Each party agrees that any Information that is furnished or made available
or otherwise disclosed to the other party pursuant to this Agreement shall
remain the property of the disclosing party.
(c)Each party further acknowledges that any and all Information, disclosed
hereunder, is valuable proprietary and confidential information of the
disclosing party.
(d)If Information is designated as confidential by an oral statement, the
disclosing party shall confirm such disclosure in writing to the receiving
party no later than ten (10) days after the oral disclosure and such
written confirmation shall state the date and place of the disclosure, the
individuals to whom the Information was disclosed and the nature of the
Information.
(e)The parties agree that all Information shall be used solely in connection
with effecting the purposes of this Agreement, shall be kept strictly
confidential, and shall be treated by the receiving party and by any
person authorized pursuant to the terms of this Agreement, to have access
thereto, as being valuable confidential and proprietary information of the
disclosing party.
(f)The receiving party shall not, without the prior written consent of the
disclosing party hereto, disclose, provide or otherwise make available
Information to any person or entity other than those of its employees who
have a need to know such Information in order for the receiving party to
carry out its obligations or exercise its rights hereunder. The receiving
party shall require its employees who have access to Information to be
made aware of its confidential and/or proprietary nature and of the
applicable requirements relative to maintaining the confidence of such
Information. The receiving party shall enforce these provisions for the
benefit of the disclosing party. The receiving party shall protect the
disclosing party's Information from unauthorized use or disclosure using
the same standard of care which it uses to protect its own proprietary
and/or confidential information. The obligations of the parties pursuant
to this Section 15 shall survive the termination or cancellation of this
Agreement with respect to each item of Information until the Information
comes into the public domain through no fault of the receiving party or
its employees.
(g)This section 15 will not be construed to grant to the Company, or to CCL,
any license or other rights in Information, except (with respect to the
Company only) as is expressly set forth in this Section 15.
(h)Upon termination of this Agreement, the receiving party will either. (i)
promptly destroy (and certify such instruction by written letter of
confirmation to the disclosing party) or (ii) return to the disclosing
party all copies of Information in the Company's possession.
16.Term and Termination
(a)This Agreement will begin on the Effective Date specified on the first
page of this Agreement and continue in effect unless and until terminated
as provided below.
(b)Either CCL or the Company may terminate this Agreement without cause at
any time upon six (6) months prior written notice.
(c)Except as provided in Sections 16(d) and 16(e), if either party is in
breach of any term of this Agreement, which breach (if capable of cure)
remains uncured after the expiration of thirty (30) days from the date of
written notice of such breach (given by the non breaching party to the
other party) then this Agreement may be terminated forthwith by written
notice to the breaching party.
(d)CCL may terminate this Agreement at any time upon not less than ten (10)
days prior written notice to the Company if the Company breaches any of
its obligations under Sections 9, 12, 13 or 14 hereof and which breach. if
capable of cure, remains uncured at the end of the aforesaid ten (10) day
notice period.
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(e)If the Company fails to meet the terms of payment as provided for by
Section 5 of this Agreement, CCL will have the right at any time, after
the expiration of ten (10) days from the date of written notice to the
Company demanding the payment of any sum which is outstanding, to
terminate this Agreement forthwith by giving written notice of such
termination to the Company.
(f)Orders outstanding on the effective date of termination will be subject to
acceptance or rejection at the sole discretion of CCL, and if accepted all
performance by the parties shall be effected as if this Agreement remained
in full force and effect. Payment terms for any order(s) accepted pursuant
to this Section 16(f) will be as specified by CCL to the Company.
(g)Upon the effective date of termination (i) the Company will pay CCL for
all CCL Products furnished hereunder (irrespective of the xxxx of
delivery) and any all other amounts then owed by the Company to CCL and
(ii) the Company will discontinue use of its designation as an authorized
Reseller of CCL.
17.Other Provisions
(a)The relationship of CCL and the Company under this Agreement is that of
independent contractors and neither is authorized to act as the agent of
the other. This Agreement does not create nor is it intended to create any
joint venture, franchise or other form of business relationship between
the parties hereto. The Company will make no representations with respect
to CCL Products other than as set forth in CCL supplied documentation or
other materials.
(b)Any failure or delay by either CCL or the Company in exercising any right
or remedy, available to either CCL or the Company under this Agreement or
at law or in equity, will not constitute a waiver of any such right or
remedy. The waiver of any single act of default will not waive subsequent
defaults of the same or different kind.
(c)The Company shall comply with all applicable laws and regulations of the
United States, including, but not limited to those relating to the export
of commodities, technical data, and direct products of such technical
data. The Company shall obtain written consent or authorization, if
required, of the Office of Export Administration of the U.S. Department of
Commerce prior to exporting or reexporting Products.
(d)Neither this Agreement nor any right or obligation hereunder may be
assigned by the Company. Any such assignment or attempted assignment shall
be void. A change in control or ownership of the Company (or its parent or
any affiliated companies) or sale of all or substantially all of the
capital stock of the Company will be deemed an assignment. Notwithstanding
the foregoing, the Company may assign its rights and obligations hereunder
to a subsidiary or affiliate of the Company upon prior written notice to
CCL.
(e)All notices required by this Agreement to be given to the Company will be
sent by certified or registered mail to its address on the first page of
this Agreement. All notices required by this Agreement to be given to CCL
will be sent by certified or registered mail addressed to:
Xxxxxx Building
P.O. Box 3186
Main Street
Road Town, Tortola, British Virgin Islands
Attention: President
(f)If any provision or any part of a provision of this Agreement shall be
held to be invalid or unenforceable such invalidity or unenforceability
shall not invalidate or render unenforceable the entire Agreement, but
rather the entire provision or the Agreement shall be construed as if not
containing the particular invalid or unenforceable provision or
provisions, and the rights and obligations of the parties shall be
construed and enforced accordingly.
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(g)No provisions of this Agreement shall be deemed waived, amended or
modified by either party, unless such waiver, amendment or modification is
in writing and signed by a duly authorized representative of each of the
parties hereto.
(h)Notwithstanding anything in this Contract to the contrary, neither party
shall be held responsible for any delay or failure in performance
hereunder caused by fires, strikes, embargoes, governmental requirements,
civil or military authorities, Act of God or by public enemy, act or
omission of common or private carriers or other causes beyond such party's
reasonable control and without such party's fault or negligence (each such
event being called a "Contingency"). Each party shall promptly notify the
other party in writing of any Contingency which occurs during the term of
this Agreement and which Contingency impairs such party's ability to
perform its obligations pursuant to this Agreement.
(i)The Company will not engage in any deceptive, misleading, unethical or
improper practices which may reflect adversely on CCL or the CCL Products.
(j)This Agreement set forth the entire agreement and understanding between
the parties as to the subject matter hereof and supersedes all prior
understandings, agreements, proposals or discussion between them, and
neither of the parties shall be bounded by any conditions, definitions,
warranties, understandings or representations with respect to such subject
matter other than as expressly provided herein, or as duly set forth on or
subsequent to the effective date hereof in writing and signed by a duly
authorized representative of each of the parties.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
by its duly authorized representatives, the day, month and year first before
written.
Care Corporation Limited The Company
By: By:
Name: Xxxx Xxxxxxxx Name: Xxxxx Xxxxxxx
Title: Director Title: Chief Executive Officer
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EXHIBIT A
DESCRIPTION OF CCL SOFTWARE PRODUCTS AND CCL
SERVICES WHICH ARE SUBJECT TO THIS RESELLER
AGREEMENT
CARE Software
The CARE Software is described in the following documents, which are
incorporated herein by reference for all purposes:
1. Volume 1, CARE Systems User's Guide: System Operations, for release
5.5.1 released on February 28, 1996.
2. Volume 2, CARE Systems User's Guide: Reports, Forms, & Correspondence,
for release 5.5.1 released on February 28, 1996.
3. Volume 3, CARE Systems User's Guide: System Setup & Maintenance, for
release 5.5.1 released on February 28, 1996.
4. Volume 4, CARE Systems User's Guide: United States Edits, for release
5.5.1 released on February 28, 1996.
5. All such updates, revisions, amendments, modifications, and/or
supplements to the foregoing.
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EXHIBIT B
DESCRIPTION OF MARKET CATEGORIES AND
GEOGRAPHICAL TERRITORY
THE GEOGRAPHIC TERRITORY EXPRESSLY EXCLUDES THE COMMONWEALTH OF AUSTRALIA,
THE DOMINION OF NEW ZEALAND, AND THE UNITED STATES OF AMERICA.
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EXHIBIT C
LISTING OF COMPANIES TO WHICH THE COMPANY
WILL NOT MARKET OR RESELL CCL PRODUCTS
None.
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EXHIBIT D
DESIGNATED EQUIPMENT AND SOFTWARE
CONFIGURATION IS FOR THE EXECUTION OF CCL
SOFTWARE PRODUCTS
To be provided within 15 days from the date herof.
03/31/98/JOD/12006/001/AGREE/263170.2
